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Repeal of ObamaCare in the Senate – How To Do It

I just posted a piece on The Heritage Foundation blog, The Foundry, titled “How to Repeal ObamaCare in the Senate.” I tried to put into easy to understand terms the way for the Senate to repeal the unconstitutional ObamaCare. Although it is unlikely that the Senate will take up the House repeal measure H.R. 2 in the next few months, it is possible to bring it up later this year or some time next year if Republicans are smart.

If Senators don’t take any action when the bill is transmitted from the House to the Senate, then there is little to no chance to pass the House repeal measure. This will show that Senate Republicans are not serious about a full repeal of ObamaCare. It is possible for conservative Senators to force a vote on H.R. 2, when the time is right, if they follow two simple procedures in the Senate to protect their rights.

The bottom line is that it is possible for opponents of ObamaCare to set themselves up for an extended debate on ObamaCare in the Senate — if they have the will. It is also possible to pass the bill in the Senate, if conservatives are patient and ready to spring a vote on liberals when the time is right.

This week the House will pass a bill to repeal Obamacare. Congressional experts will argue that the Senate won’t pass a full repeal. They are correct to argue that full repeal will not be passed by both the House and Senate in the next few months, but they may be wrong that a full repeal bill will not pass in this Congress within the next two years. If Senators don’t take two procedural steps this week, they will make it virtually impossible to ever get a vote on the House-passed full repeal bill this Congress.

Just to be clear, I understand that there are 53 Senators that caucus with the Democrats and 47 Republicans. The math is not good for the proponents of repeal, yet if Republicans can pick up 4 Democrats then they can win this fight. Here is how.

Under Senate Rule 14, any one Senator can object to the second reading of the bill and conservatives would be dumb not to do so. It serves no purpose to allow liberals to send the bill to repeal ObamaCare into a committee populated by members who helped write the bill and controlled by liberals.

This procedural objection will “hold at the desk” the House-passed bill and allow the Senate to act on the full repeal measure. If the bill is referred to committee, it will never get to the Senate floor. This procedural objection by one or a number of Senators will stop the bill from being referred to the Senate Health, Education, Labor and Pensions Committee (HELP). If the bill is referred to committee, there is little to no expectation that the committee will pass the bill, let alone have one hearing on the bill.

Once you object to the bill being read a second time, it can sit on the Calendar for the next 2 years or until conservatives have mustered the votes to pass the bill. Once the bill is on the Senate Calendar, then conservative have a few options. First, any Senator could use the provisions in Rule 22 to commence debate on H.R. 2 if they have gathered up the signatures of sixteen Senators as early as next week.

If conservatives merely wanted to force a cloture vote on H.R. 2, then they could file the cloture petition early next week and have a vote two days later. As I noted in my Foundry piece “this would put many Senate Democrats in the interesting situation of voicing support for so-called ‘filibuster reform’ while at the same time using the filibuster rule to block an up or down vote on Obamacare.” Liberals would have to filibuster the motion to proceed to H.R. 2.

A second option is for Senators to take the temperature of the Senate periodically and launch the cloture vote when they have secured 4 votes of Democrats to support H.R. 2. Jennifer Rubin writes for the Washington Post:

The Republican Senate leadership does not expect any Senate Democrats to flip sides on the vote for an out-and-out repeal. The consolation prize is that Democratic senators such as Jim Webb, Claire McCaskill, Ben Nelson and Bill Nelson will have to defend those votes in 2012.

What if these 4 Senators start to see poll numbers that indicate it would help them to vote for repeal of ObamaCare? All of a sudden, there may be a coalition of 51 Senators who would vote to repeal ObamaCare.

If that scenario plays out, then conservatives can keep the ObamaCare repeal measure on the floor until the liberals stop obstructing passage of the bill. They can do so by filing cloture petitions over and over again if there are only between 50 and 60 votes to shut off debate on the motion to proceed to the bill. Make these liberals who have been crying about the filibuster and obstructionism for a year engage in a real filibuster of the repeal of ObamaCare.

Furthermore, if a number of federal courts declare parts of ObamaCare unconstitutional, then there will be more of an incentive for Senators to vote for repeal. The poll numbers on ObamaCare have consistently shown that the American people despise this law. The probability of full repeal may go up over time if you combine upside down poll numbers and a potential court attack on the individual mandate in ObamaCare.

At a minimum, Senators have the power to force a vote on full repeal of Obamacare if they have the will to do so. As I said over at the Foundry, “if the supporters of a full repeal of Obamacare don’t use the Senate’s rules to force a vote on full repeal, don’t take them seriously when they say they are really want to repeal President Obama’s de facto government takeover of health care.”

A repeal vote is fully within the power of Senators — if they are serious about repeal.